[Cite as Jochum v. State ex rel. Mentor, 2020-Ohio-4191.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

MICHAEL JOCHUM, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NO. 2020-L-032

 - vs - : 

STATE OF OHIO ex rel. 

CITY OF MENTOR, et al., 

: 

: 

 Defendants-Appellees. 

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2019 CV 001687. 

Judgment: Affirmed. 

Michael P. Harvey, Michael P. Harvey Co., L.P.A., 311 Northcliff Drive, Rocky River, 

OH 44116 (For Plaintiff-Appellant). 

Joseph P. Szeman, Hennig, Szeman & Klammer Co., LPA, 8500 Station Street, Suite

245, Mentor, OH 44060 (For Defendant-Appellee, City of Mentor). 

Richard N. Selby, II, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, 

OH 44077 (For Defendants-Appellees, the Osborne Defendants). 

William Joseph Baker, Baker & Roszczyk, LLC, 175 Park Place, Chagrin Falls, OH 

44077 (For Defendant-Appellee, Mary Ann Osborne). 

TIMOTHY P. CANNON, P.J. 

{¶1} Plaintiff-appellant, Michael Jochum (“Mr. Jochum”), appeals from the 

February 18, 2020 order of the Lake County Court of Common Pleas, in which the trial 

court (1) denied Mr. Jochum’s motions to strike; (2) denied certain other pending 
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motions as moot; (3) granted the motion to dismiss filed by the city of Mentor; and (4) 

granted the motions to dismiss and/or for summary judgment filed by Mary Ann 

Osborne (“Mrs. Osborne”) and the Osborne Defendants.1 Concluding Mr. Jochum’s 

arguments on appeal are without merit, we affirm the trial court’s judgment. 

The Complaint 

{¶2} On October 17, 2019, Mr. Jochum filed a seven-count complaint in the 

Lake County Court of Common Pleas, assigned Case No. 19CV001687, against the 

Osborne Defendants, Mrs. Osborne, and “State of Ohio, ex rel. City of Mentor Director 

of Law Joseph P. Szeman.” He requested declaratory judgment and alleged claims of 

fraud, intentional interference with property rights, intentional interference with 

prospective economic advantage, negligence, slander of title, and trespass. No 

documents were attached to the complaint. 

{¶3} In the complaint, Mr. Jochum recites the “Facts Common to All Counts” as 

follows: 

1. Jochum purchased the property at 9603 Deer Ridge, Mentor, 

Ohio 44060. 

2. Unbeknownst to him, the case of State of Ohio ex rel. Michael 

DeWine, Ohio Attorney General, Case No. 13CV001868 before 

Judge O’Donnell was pending. 

3. The previous owners of the property he purchased either were 

not aware of this litigation or did not intervene into the litigation. 

 

1. The Osborne Defendants include Jerome T. Osborne, Osborne Co. Ltd., The Georgianne S. Osborne 

Family Memorial Trust, Osborne Concrete & Stone Co., Lakeshore Blvd. Properties Ltd., Richard M. 

Osborne, Georgeanne Osborne Gorman, Michael E. Osborne, Jacqueline Osborne Fisher, William V. 

Krug, Jerome T. Osborne III, William L. Mackey, and Jerome Cash Osborne. It appears from the docket 

of the previous case, Case No. 19CV000779, that Jerome T. Osborne predeceased the complaint in that 

action. In that case, Mr. Jochum requested to substitute the individual Osborne Defendants as fiduciaries 

of Jerome T. Osborne’s Estate. In the case sub judice, Mr. Jochum again named Jerome T. Osborne as 

a defendant and each individual Osborne that he had previously identified as a fiduciary. 
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4. They were affected by the salt and other hazardous materials 

dumped underneath the property at 9603 Deer Ridge. 

5. This has been determined by the Lake County General Health 

District as well as the Ohio EPA. 

6. The prior owners of the property, Krankovich and Noga, were 

found by a Lake County jury to be guilty of fraud in failing to 

disclose this information to Jochum. 

7. Following this Order, the jury awarded $5,000.00 to Jochum in 

part because he did not have a damages expert due to difficulties 

with his prior counsel. 

8. The undersigned counsel wrote to counsel for the State of Ohio 

Attorney General’s Office asking for the right to intervene in the 

Consent Order issued on or about January 9, 2019. 

9. The Attorney General’s Office have refused to permit Jochum to 

be included in the Consent Order, necessitating this litigation. 

10. Jochum desired to be considered for the remedial monies 

associated with the Consent Order and specifically ¶5 on Page 4 

which deals with the damages resulting to the real property from fly 

ash, salt and other materials in the salt fill site which included 

Jochum’s property unbeknownst to him until carved out for homes. 

11. Jochum is aware that the sum of $10,600,000.00 was put into 

a fund to be used by the Ohio EPA for the purpose of remediating 

the salt fill site and eliminating the ongoing pollution to the Mentor 

Marsh. 

12. But, the original parties to that litigation did not include 

Jochum’s property because it was mistakenly believed, or 

misidentified to Mentor, that the property did not have salt tailings 

under it when in fact it did. 

{¶4} The first count of Mr. Jochum’s complaint requests declaratory judgment, 

in which he asks the trial court to declare that he should be part of a Consent Order that 

was issued on January 9, 2019, by another judge of the Lake County Court of Common 

Pleas in Case Nos. 13CV001868 and 16CV001144, to which he was not a party. More 
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specifically, in his prayer for relief, Mr. Jochum requests the trial court to declare as 

follows: 

[T]hat Mr. Jochum, who owns the property under which is the salt 

tailings and other dangerous chemicals dumped there by Osborne 

and related companies for decades, should have been able to 

participate in the January 2019 settlement to remediate or buy his 

property, all of which is described in Lake County Case Nos. 

13CV001868 and 16CV001144 which Mr. Jochum’s predecessor 

owners tried to participate in only to be thwarted by Osborne’s 

agents, who provided a false narrative as to what the source of 

their problems were when they knew, or should have known, that 

the problems were exactly identical to what ended up being settled 

in January 2019, but those people were never told. 

{¶5} With regard to the next four counts—fraud, intentional interference with 

property rights, intentional interference with prospective economic advantage, and 

negligence—Mr. Jochum repeats the same fourteen paragraph recitation under each 

individual count, as follows: 

Whether by fraudulent concealment or fraudulent 

misrepresentation, one or more of the Defendants, together with 

companies they created or controlled, falsely told the City of Mentor 

and its respective Boards and Agencies and Officials that the 

property they wished to develop as carved out from the Mentor 

Marsh was safe for development. 

As it turned out, that property was not safe for development, and at 

least the Jochum and one other property next to him has the same 

amounts and types of materials under his property as does the 

Mentor Marsh which is the subject of a January 2019 Settlement 

Agreement that excluded the Jochum property and the property 

next to him. 

 

These properties were carved out of the Mentor Marsh by one or 

more of the Defendants years ago in an effort to develop 

residences without proper safeguards to ensure that these 

residences were not sitting on “dead land” which is in fact the case. 

 

The people that Mr. Jochum bought the property from apparently 

discovered problems with their basement walls, the air in their 
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basement, their sump pump system and their footer drains 

throughout the entire time they owned the property. 

 

They were found guilty of fraud by a Lake County jury in 2019 for 

fraudulent concealment of that information from Mr. Jochum. 

 

They withheld this information so they could get a price from Mr. 

Jochum that they would not have gotten had they disclosed that 

information. 

 

They also sued their builder for reasons and for claims that we 

cannot determine because the builder and the sellers will not 

provide that information, claiming that it is private information 

pursuant to the contract with each other. 

 

According to the sellers, they lost that Arbitration for reasons again 

that we cannot determine, but the sellers had reason to believe 

they needed to sue somebody for all the problems that were 

caused to them. And, right after they lost the Arbitration is when 

they decided to withhold information and sell the property to 

Jochum. 

 

But, all of this was put into motion by one or more of the 

Defendants and their agents and entities back when they told the 

City of Mentor that the property was perfectly acceptable upon 

which to build homes, which in fact was a false statement. 

 

When the previous owners to Jochum reached out to the sellers 

and the Osbornes, they were rebuffed by Osborne’s legal counsel 

at the time, copies of which is attached hereto,2 which show that the 

information provided by the lawyers, hopefully through their clients, 

was false. 

 

This information was never corrected to these prior owners, and 

they should have been informed of the misstatements by the 

lawyers and should have been asked to be part of the litigation 

because the property upon which the Jochum residence sits is 

going to require, by rough estimates, over $300,000.00 at least to 

remediate, which is far more than the property is worth. 

 

In short, no property should ever have been built on Jochum’s 

property as well as the property next to it which is vacant. And, that 

is the same reason no property has ever been built on any other 

part of the Mentor Marsh because this is the only part that was 

carved out by Osborne and its related companies. 

 

2. No copies of any documents were attached to the complaint. 
 6

 

We believe that one or more of these parties and/or entities and 

agents committed fraud, both on the City of Mentor as well as the 

Jochum predecessors, both by withholding the information, by 

misleading the City of Mentor, by knowing it was likely to contain 

the same material as what they dumped in the Mentor Marsh for 

decades, and then having their lawyers tell them that they were 

wrong and forcing them to spend tens of thousands of dollars fixing 

this for years and then to sue the Osborne-created builder and then 

lose that for reasons that we suspect had to do with the fact that the 

builder probably legally was out of the loop on the information. But, 

we do not know because we do not have the material. 

 

As a result of the allegations contained in this count, we respectfully 

request damages in an amount to be determined at trial. 

{¶6} Finally, with regard to the last two counts of the complaint, Mr. Jochum 

alleged the following: 

Slander of Title – Due to the actions of the Defendants and/or their 

agents in ruining the soil under the home, misidentifying information 

to the City of Mentor as well as the Jochum predecessor owners, 

the title the property [sic] has been adversely affected. Jochum’s 

title is and has been perpetually besmirched by one or more actions 

of the Defendants and/or their agents and, as a consequence, 

Jochum’s value has been irreparably damaged in an amount to be 

determined at trial. 

Trespass – One or more of the Defendants through their agents 

came on to the Jochum property or the property of the predecessor 

owners in privity, and dumped salt tailings, fly ash and other 

chemicals over many decades. None of this was disclosed to 

Jochum, either when he bought the property or from what we 

understand now to the Jochum predecessor owners, Krankovich 

and Noga when they purchased the property from an entity created 

by the Osborne family or related Osborne family members in order 

to sell certain lots carved out from the Mentor Marsh. From what 

we understand now, the City of Mentor was told that the property 

was free of contaminants which was false. This trespass has 

created a serious blight on the title and rights of Mr. Jochum as well 

as potential for sale because preliminary estimates are Jochum 

would be likely to get only as much as fifteen to twenty thousand 

dollars at most for this property which would have to be severely 

remediated at a very high cost. As a result of the trespass by one 
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or more of the Defendants and/or their agents, Jochum has been 

damaged in an amount to be determined at trial. 

The City of Mentor 

{¶7} On November 12, 2019, the city of Mentor filed a Motion for Definite 

Statement, pursuant to Civil Rule 12(E). Specifically, the city requested clarification as 

to (1) who exactly is the named defendant and (2) which counts are directed at that 

defendant. 

{¶8} Mr. Jochum opposed the motion on the basis that Ohio is a notice 

pleading state and upon his declaration that “the City of Mentor is well aware of Mr. 

Jochum’s concerns, because he has not at all been secretive of the process nor shy 

about explaining his problems with sitting in a home that’s virtually worthless because of 

the actions of others.” 

{¶9} The trial court granted the motion on December 16, 2019, and ordered Mr. 

Jochum to (1) “clarify whether its claims are against the State of Ohio, the City of 

Mentor, or the Law Director of the City of Mentor”; and (2) “specify which of its claims 

are asserted against this defendant and provide a short, plain statement of the basis for 

his claims against this defendant.” 

{¶10} On January 2, 2020, Mr. Jochum filed a response to the court order 

requiring a more definite statement. He explained that “the claims are against the City 

of Mentor via the Law Director for the City of Mentor.” With regard to which claims were 

brought against the city of Mentor, he wrote: 

The Plaintiff will be more than happy to provide the Court with an 

amended Complaint detailing what we understand to be the City of 

Mentor’s culpability in the situation. But before we get to that, the 

City of Mentor was approached by an entity controlled by one or 

more of the Osborne defendants. This entity and the City of Mentor 
 8

over several years had numerous discussions concerning a carveout of the Mentor Marsh for a new home subdivision. 

Obviously, Mr. Jochum was totally unaware of this, as were the 

Jochums’ predecessor owners. The City of Mentor, from the 

documents we were able to obtain in 2019, showed great concern 

for such a carveout, considering how close this subdivision is to the 

Mentor Marsh contaminated area. 

The City of Mentor, its boards, its governmental agencies, its 

agents and others, on behalf of the City of Mentor went forward 

doing a great deal of due diligence over what appears to us to be a 

couple of years, during which time borings were submitted by this 

Osborne-related company justifying its position that no 

contaminants were found in the subdivision similar to the Mentor 

Marsh, and that the carve-out was legitimate and proper. 

Eventually, this carve-out was done, the Osborne-related 

defendants carved out the subdivision, homes were built and sold, 

and one of these was to Mr. Jochum’s predecessors, who moved in 

as new owners to a new home right on the edge of the Mentor 

Marsh. 

Again, according to the paperwork we received in 2019, the 

predecessor owners were experiencing and expressing concerns 

over numerous problems in their basement, almost from the 

beginning of their ownership. * * * 

The predecessor owners were very adamant about finding out what 

to do about this situation. They were in contact with the City of 

Mentor and its officials regularly. They also tried to contact the 

builder, Mr. Osborne, state, city and local officials, all of whom 

either ignored them or pointed them in a direction away from the 

fact that under their foundation was all of the contaminants that are 

found in the Mentor Marsh causing the same problems over there 

as they are causing to a homeowner having a home built on it. * * * 

So to put a finer point on this, we don’t know at this time, without 

further discovery, whether the City of Mentor was reckless or worse 

with respect to the receipt of the information they received though 

this process by one or more of the Osborne-related companies or 

agents. We don’t know because we haven’t had a chance through 

discovery, whether they did all they could do at the time and should 

not be a party, or whether they did not do all they could have done 

at the time, or subsequent to the time and are culpable for at least 
 9

not ensuring the new home the predecessor owners owned and 

now Mr. Jochum owns, is not sitting on a contaminated EPA site. 

{¶11} On January 10, 2020, the city of Mentor filed a Motion to Dismiss, 

pursuant to Civil Rule 12(B)(6) for failure to state a claim upon which relief can be 

granted and Civil Rule 12(E) for failure to comply with the order to provide a more 

definite statement. 

{¶12} Mr. Jochum opposed the motion to dismiss, again stating he would file an 

amended complaint if the trial court ordered him to do so. He requested the court deny 

the motion to dismiss and “to direct us as necessary to file an Amended Complaint; and 

to instruct the Defendant, City of Mentor, to stop filing unnecessary, frivolous motions 

designed to waste time and effort when all we need to do is get into the discovery of the 

case to understand Mentor’s role with respect to the contaminants under Mr. Jochum’s 

property.” 

The Osborne Defendants and Mrs. Osborne 

{¶13} On December 18, 2019, the Osborne Defendants filed a Motion to Dismiss 

and/or in Alternative Motion for Summary Judgment. The motion was brought pursuant 

to Civil Rule 12(B)(6) for failure to state a claim upon which relief can be granted. The 

motion for summary judgment was additionally based on the doctrine of res judicata. 

The motion further raised the defense of collateral estoppel and argued the claims 

against the Estate of Jerome T. Osborne were time-barred. The Osborne Defendants 

also filed a motion to stay discovery until the trial court ruled on their motion to dismiss. 

{¶14} On December 24, 2019, Mrs. Osborne filed a Motion to Dismiss, for the 

same reasons set forth and explained in the Osborne Defendants’ Motion to Dismiss 
 10 

and/or for Summary Judgment, to which Mrs. Osborne referred and incorporated by 

reference. 

{¶15} Attached to the motion for summary judgment was an affidavit of counsel 

for the Osborne Defendants, which incorporated by reference and attachment thereto 

sworn copies of various pleadings and orders from a previous case filed by Mr. Jochum 

in the Lake County Court of Common Pleas, assigned Case No. 19CV000779. The 

named defendants in that case were “State of Ohio, ex rel. Dave Yost Ohio Attorney 

General; State of Ohio, ex rel. City of Mentor Director of Law Joseph P. Szeman; 

Jerome T. Osborne; Osborne Company Limited; The Georgianne S. Osborne Family 

Memorial Trust; Osborne Concrete & Stone Co.; and Lakeshore Boulevard Properties 

Ltd.” The complaint had requested declaratory relief and the right to intervene in the 

litigation that resulted in the Consent Order regarding Mentor Marsh (i.e., Case No. 

13CV001868). The trial court had granted the motion to dismiss filed by the named 

Osborne Defendants and the motion to dismiss filed by the state of Ohio, pursuant to 

Civil Rule 12(B)(6), for failure to state a claim upon which relief could be granted. 

Subsequently, Mr. Jochum had voluntarily dismissed his claims against the city of 

Mentor without prejudice. Mr. Jochum did not appeal the trial court’s dismissal order. 

{¶16} In the case at hand, Mr. Jochum did not respond to the dispositive motions 

filed by the Osborne Defendants and Mrs. Osborne. He did file Motions to Strike, 

however, asserting the motions were improper at that stage in the litigation and that the 

Osborne Defendants had failed to respond to written discovery. 
 11 

{¶17} The Osborne Defendants responded to the Motion to Strike, arguing the 

motion for summary judgment was necessary in order for the trial court to properly 

address the issue of res judicata. 

{¶18} On January 28, 2020, the Osborne Defendants filed a motion for a 

telephone status conference to discuss the outstanding discovery dispute, which Mr. 

Jochum opposed. 

Trial Court’s Order 

{¶19} On February 18, 2020, the trial court issued the order that is now the 

subject of appeal. The court denied Mr. Jochum’s motions to strike; granted the city of 

Mentor’s motion to dismiss; granted the Osborne Defendants’ motion to dismiss and/or 

for summary judgment; granted Mrs. Osborne’s motion to dismiss and/or for summary 

judgment; and denied as moot the Osborne Defendants’ motion to stay discovery and 

motion for a telephone status conference. 

{¶20} With regard to the city of Mentor, the trial court held that Mr. Jochum did 

not comply with the order to provide a more definite statement, as he neither specified 

which claims were asserted against the city nor provided a short and plain statement of 

the basis for his claims against the city. Moreover, Mr. Jochum’s response did not 

allege any misconduct on the part of the city. Thus, the trial court concluded that taking 

as true the allegations in the complaint and the response to the order for more definite 

statement, Mr. Jochum failed to state a cause of action against the city of Mentor. The 

city’s motion to dismiss was well taken and granted. 

{¶21} As pertains to Mr. Jochum’s motions to strike, the trial court held that the 

exhibits attached to the Osborne Defendants’ motion to dismiss and/or for summary 
 12 

judgment, which were incorporated by affidavit, were appropriate Civil Rule 56(C) 

evidence. The trial court further stated that Mr. Jochum had not requested a Civil Rule 

56(F) continuance, thus his argument that further discovery was needed before he 

could respond to the motions was not well taken. The motions to strike were denied. 

{¶22} The trial court granted the Osborne Defendants’ and Mrs. Osborne’s 

motions to dismiss and/or for summary judgment. First, the trial court concluded Mr. 

Jochum’s claims were barred by the doctrine of res judicata, explaining: 

The allegations in the plaintiff’s complaint are nearly identical to the 

allegations in his complaint filed in 19CV000779, although the 

complaint in that matter sought only declaratory judgment. The

court granted the defendants’ motions to dismiss in Case No. 

19CV000779, but the case remained pending against the City of 

Mentor. However, the plaintiff dismissed his claims against the City 

of Mentor without prejudice on September 16, 2019, thereby 

making the order granting the other defendants’ motions to dismiss 

a final order. Denham v. New Carlisle, 86 Ohio St.3d 594, 1999-

Ohio-128. Moreover, the remaining claims in the complaint in this 

case are based on the same factual allegations as the complaint in 

19CV000779, and could have been brought in that case. “A valid, 

final judgment rendered upon the merits bars all subsequent 

actions based upon any claim arising out of the transaction or 

occurrence that was the subject matter of the previous action.” 

Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 

syllabus. Therefore, the court finds that the plaintiff’s claims are 

barred by res judicata. 

{¶23} The trial court further concluded Mr. Jochum’s complaint failed to state a 

claim upon which relief could be granted, for the following reasons: 

His declaratory judgment claim asks this court to declare that he be 

permitted to participate in a settlement in a different case to which 

he was not a party, that was not before this court, and involved 

(based on the case caption referenced in the complaint) at least 

one other party who is not a party to this action. The court is 

unaware of any authority to make such an order, and the plaintiff 

cites to none. 
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Further, the plaintiff’s claims for fraud, intentional interference with 

property rights, intentional interference with prospective economic 

advantage, and negligence essentially allege that the Osborne 

Defendants and/or Mary Ann Osborne withheld information from or

made misrepresentations to the City of Mentor and/or the prior 

owners of the property regarding the condition of the property at 

issue in this matter. There are no allegations that these defendants 

withheld information from or made misrepresentation to the plaintiff. 

The complaint further includes a claim for slander of title. However, 

there are no allegations that the defendant published a slanderous 

statement disparaging the plaintiff’s title. LeVangle v. Raleigh, 2d 

Dist. Montgomery No. 27946, 2019-Ohio-810, ¶32. 

Finally, the plaintiff’s claim for trespass alleges that the defendants 

trespassed on the property and dumped “salt tailings, fly ash and 

other chemicals over many decades.” However, it is clear from the 

complaint that this alleged trespass occurred prior to the plaintiff’s 

ownership of the property. 

Assignments of Error 

{¶24} Mr. Jochum noticed a timely appeal from the trial court’s final order and 

raises two assignments of error for our review: 

[1.] The Trial Court committed prejudicial error and abused its

discretion by granting 12(B) dismissal and summary judgment in 

the alternative. 

[2.] The Trial Court committed prejudicial error and abused its

discretion in granting dismissal based on res judicata and/or 

collateral estoppel in as much as the elements of issue and claim 

preclusion were not met. 

{¶25} Under his first assignment of error, Mr. Jochum asserts the trial court 

erred in granting the motions to dismiss by ignoring Civil Rules 8 and 12, as well as 

Ohio common law, which disfavors dismissal and requires only notice pleading. He also 

contends that, at a minimum, the trial court should have permitted an amended 

complaint rather than granting the city’s motion for more definite statement. Under his 
 14 

second assignment of error, Mr. Jochum asserts the trial court erred in concluding his 

claims were barred by the doctrine of res judicata. 

Standard of Review 

{¶26} Each of the trial court’s actions of which Mr. Jochum protests are subject 

to de novo review on appeal: 

{¶27} “An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de 

novo review.” Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶5. 

“The determination of whether an action is barred by the doctrine of res judicata is a 

question of law which an appellate court reviews de novo.” Miller v. Lagos, 11th Dist. 

Trumbull No. 2008-T-0014, 2008-Ohio-5863, ¶15 (citation omitted). Also, whether the 

trial court applied the wrong legal standard is an argument we review de novo. Butler v. 

Lubrizol Corp., 11th Dist. Lake No. 2014-L-104, 2015-Ohio-1216, ¶20. And, finally, “the 

determination of whether the trial court properly granted summary judgment below 

involves only questions of law and is considered on a de novo basis.” Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105 (1996) (citation omitted). 

{¶28} Thus, we have conducted our own review of the record, independently 

and without deference to the trial court’s determinations. 

Application of the Civil Rules 

Civil Rule 12(B)(6) and Civil Rule 8(A) 

{¶29} Mr. Jochum first argues the trial court failed to apply the proper legal 

standard to the Civil Rule 12(B)(6) motions to dismiss. It is clear from the trial court’s 

order, however, that it applied the proper standard. Further, Mr. Jochum does not 
 15 

support this assertion with any explanation or citation to the order. Instead, he merely 

recites the legal standard. This argument is not well taken. 

{¶30} Next, Mr. Jochum asserts the trial court failed to adhere to Ohio’s Civil 

Rule 8(A) notice pleading standard, because it is not necessary for the complaint to 

“carry the full blueprint for the impending trial.” 

{¶31} “A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992) (citation omitted). “In 

construing a complaint upon a motion to dismiss for failure to state a claim, we must 

presume that all factual allegations of the complaint are true and make all reasonable 

inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio St.3d 

190, 192 (1988) (citations omitted). “Consequently, ‘as long as there is a set of facts, 

consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the 

court may not grant a defendant’s motion to dismiss.’” Cincinnati v. Beretta U.S.A. 

Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶29, quoting York v. Ohio State Hwy. Patrol, 

60 Ohio St.3d 143, 145 (1991). 

{¶32} This standard is consistent with Civil Rule 8(A), which provides for notice 

pleading: “A pleading that sets forth a claim for relief * * * shall contain (1) a short and 

plain statement of the claim showing that the party is entitled to relief, and (2) a demand 

for judgment for the relief to which the party claims to be entitled.” Civ.R. 8(A); Hanson, 

supra, at 549. 

{¶33} “Thus, to survive a motion to dismiss for failure to state a claim upon 

which relief can be granted, a pleader is ordinarily not required to allege in the complaint 
 16 

every fact he or she intends to prove; such facts may not be available until after 

discovery.” Hanson, supra, at 549, citing York, supra, at 144-145. Nevertheless, 

“although the ‘no set of facts’ test is very permissive, the plaintiff still bears the 

responsibility of crafting ‘a short and plain statement of the claim showing that the party 

is entitled to relief.’” Evans v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 

19AP-756, 2020-Ohio-1521, ¶17 (emphasis sic), quoting Civ.R. 8(A) and York, supra, at 

145. 

{¶34} Here, Mr. Jochum’s complaint does not show that he is entitled to any 

relief from the defendants such that it could survive a sufficiency challenge under Civil 

Rule 12(B)(6). The material allegations of his complaint are that somebody—it is 

unclear who, but maybe one of the Osborne Defendants or Mrs. Osborne—withheld 

information or made misrepresentations that his property was safe to be developed 

when it actually was not; but the misrepresentations were not made to him—they were 

made to the city of Mentor and/or to the previous owners of his property. He alleges 

absolutely no wrongdoing on the part of the city of Mentor but instead speculates that it, 

too, may or may not have been wronged by one of the Osborne Defendants or Mrs. 

Osborne. And, finally, he states a legal conclusion that one or some of the Osbornes 

slandered his title to the property, without any factual basis whatsoever, and that one or 

some of the Osbornes trespassed on his property before he owned it. 

{¶35} In short, it is apparent that Mr. Jochum believes he is entitled to relief for 

harm that was done to his property prior to his purchase of the property. He provided 

no factual allegations to support why he is entitled to any relief from the city of Mentor. 

Further, the factual allegations to support why he is entitled to relief from any of the 
 17 

Osborne Defendants or from Mrs. Osborne are entirely speculative and fail to allege 

how they harmed Mr. Jochum, as opposed to third parties. Finally, the trial court did not 

have authority to issue the requested declaratory judgment—that he be permitted to 

participate in a settlement order issued in a separate case before a different court that 

had already been disposed. 

{¶36} As such, Mr. Jochum’s complaint was insufficient, even under the liberal 

notice pleading standard, to avoid dismissal under Civil Rule 12(B)(6). 

Federal Civil Rule 12(b)(6) 

{¶37} Mr. Jochum next contends that the trial court inappropriately used the 

heightened pleading standard of the federal rules of civil procedure. Federal courts 

require the pleader to set forth “enough facts to state a claim to relief that is plausible on 

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009) (“only a complaint that states a plausible claim for relief 

survives a motion to dismiss”). 

{¶38} Mr. Jochum believes the trial court was too stringent in its review of his 

complaint because “‘the motion to dismiss is viewed with disfavor and should rarely be 

granted.’” Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 100050, 2014-Ohio-396, 

¶15, quoting Slife v. Kundtz Properties, Inc., 40 Ohio App.2d 179, 182 (8th Dist.1974). 

However, as was acknowledged in the same opinion upon which Mr. Jochum relies: 

“‘Nevertheless, to constitute fair notice, the complaint must still allege sufficient 

underlying facts that relate to and support the alleged claim, and may not simply state 

legal conclusions.’” Id. at ¶12, quoting Grossniklaus v. Waltman, 5th Dist. Holmes No. 

09CA15, 2010-Ohio-2937, ¶26. 
 18 

{¶39} As held above, Mr. Jochum’s complaint failed to meet Ohio’s liberal 

standard by failing to allege either cognizable causes of action against the defendants 

or short and plain statements showing he is entitled to relief. That, in and of itself, is not 

an indication that the trial court applied a heightened standard, and we glean nothing 

from the record in support of the contention. 

Civil Rule 10(C) 

{¶40} Pursuant to Civil Rule 10(C), “[a] copy of any written instrument attached 

to a pleading is a part of the pleading for all purposes.” Mr. Jochum contends the trial 

court refused to consider documents incorporated into his complaint. Mr. Jochum did 

not attach any written instruments to his complaint. We reject this argument. 

Civil Rule 8(E)(2) and (F) 

{¶41} Mr. Jochum next asserts the trial court failed to comply with the following 

civil rules: 

(E)(2) A party may set forth two or more statements of a claim or 

defense alternately or hypothetically, either in one count or defense 

or in separate counts or defenses. When two or more statements 

are made in the alternative and one of them if made independently 

would be sufficient, the pleading is not made insufficient by the 

insufficiency of one or more of the alternative statements. A party 

may also state as many separate claims or defenses as he has 

regardless of consistency and whether based on legal or equitable 

grounds. All statements shall be made subject to the obligations set 

forth in Rule 11. 

(F) All pleadings shall be so construed as to do substantial justice. 

Civ.R. 8. 

{¶42} Mr. Jochum does not state which of his claims he believes were made in 

the alternative, and our review of the complaint reveals none. There are multiple 

claims, not necessarily inconsistent with each other, that simply do not state a claim 
 19 

upon which relief may be granted. The trial court also did not dismiss the complaint on 

this basis. Further, nothing in the record or the trial court’s orders indicate that it 

construed the pleadings so as not to do substantial justice. Dismissal of an insufficient 

complaint does not equate to a dismissal “out of hand.” 

Civil Rule 12(E) 

{¶43} Mr. Jochum also contends the trial court required a heightened pleading 

burden by granting the city of Mentor’s motion for more definite statement, filed 

pursuant to Civil Rule 12(E). The trial court’s entry granting the motion for more definite 

statement was not included in Mr. Jochum’s notice of appeal. Accordingly, we decline 

to address an argument that attempts to assign error to that decision. See App.R. 3(D) 

(“The notice of appeal * * * shall designate the judgment, order or part thereof appealed 

from * * *.”); and App.R. 12(A)(1)(a) (a court of appeals “shall review * * * the judgment 

or final order appealed”). 

Civil Rule 15 

{¶44} Additionally, Mr. Jochum argues the trial court should have provided him 

with an opportunity to amend his complaint. The trial court did not prevent Mr. Jochum 

from filing an amended complaint. The logical time to have filed or requested leave to 

file an amended complaint would have been when the trial court ordered a more definite 

statement. Instead, Mr. Jochum told the court he would “be more than happy to provide 

the Court with an amended Complaint.” He did not choose to do so, however, despite 

the liberal procedure outlined in Civil Rule 15 to amend a pleading as a matter of 

course, or by requesting consent from the opposing party, or by requesting leave of 
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court, which is to be freely given. The trial court did not err by failing to grant relief Mr. 

Jochum never requested. This argument is not well taken. 

Civil Rule 12 and Civil Rule 56 

{¶45} Finally, Mr. Jochum argues the trial court erred in permitting the 

defendants to file a motion for summary judgment in the alternative to a motion to 

dismiss. 

{¶46} Civil Rule 12(B) provides that, “[w]hen a motion to dismiss for failure to 

state a claim upon which relief can be granted presents matters outside the pleading 

and such matters are not excluded by the court, the motion shall be treated as a motion 

for summary judgment and disposed of as provided in Rule 56.” 

{¶47} The court is required to “consider only such matters outside the pleadings 

as are specifically enumerated in Rule 56,” id., which the trial court did when it 

considered defense counsel’s affidavit and the sworn copies of documents from the 

previous case brought by Mr. Jochum. See Civ.R. 56(C) & (E). No other evidence was 

submitted to the trial court, as the only issue raised in the alternative motion for 

summary judgment was the doctrine of res judicata. 

{¶48} Additionally, “[a]ll parties shall be given reasonable opportunity to present 

all materials made pertinent to such a motion by Rule 56.” Civ.R. 12(B). Mr. Jochum 

was not prevented from filing a response to the motions, nor was he prevented from 

filing a Civil Rule 56(F) motion for additional time to conduct discovery. He chose to do 

neither. 

{¶49} Mr. Jochum’s first assignment of error is without merit. 
 21 

The Doctrine of Res Judicata 

Affirmative Defense 

{¶50} Initially, Mr. Jochum argues that it was improper for the trial court to grant 

a motion to dismiss based on res judicata because it is an affirmative defense. It is true: 

res judicata is an affirmative defense that “may not be raised by motion to dismiss under 

Civ.R. 12(B).” State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991), citing 

Civ.R. 8(C). It is properly raised, however, in a motion for summary judgment. Id., 

citing with approval Johnson v. Linder, 14 Ohio App.3d 412 (3d Dist.1984). 

{¶51} Here, the trial court applied the doctrine when ruling on the alternative 

motions for summary judgment, not the motions to dismiss. As we have held the 

alternative motions for summary judgment were not improper, res judicata was properly 

raised therein, and this argument is not well taken. 

Not Mandatory 

{¶52} Mr. Jochum next contends the trial court applied the doctrine of res 

judicata “rigidly,” as it is “not mandatory” in every action and is “‘not a shield to protect 

the blameworthy.’” We agree with these statements of the law. Smith v. Ohio Edison 

Co., 11th Dist. Trumbull No. 2014-T-0093, 2015-Ohio-4540, ¶9, quoting Davis v. WalMart Stores, Inc., 93 Ohio St.3d 488, 491 (2001). We do disagree, however, with the 

idea that the trial court somehow utilized this doctrine to work an injustice or to protect 

the defendants in this case. We reject this argument. 

Claim Preclusion 

{¶53} The substance of Mr. Jochum’s argument is that the elements of res 

judicata were not met here, such that the trial court erred in relying on the doctrine to 
 22 

grant summary judgment. “The doctrine of res judicata encompasses the two related 

concepts of claim preclusion, also known as res judicata or estoppel by judgment, and 

issue preclusion, also known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 

113 Ohio St.3d 59, 2007-Ohio-1102, ¶6, citing Grava v. Parkman Twp., 73 Ohio St.3d 

379, 381 (1995). 

{¶54} Here, the trial court relied on the concept of claim preclusion. “Claim 

preclusion prevents subsequent actions, by the same parties or their privies, based 

upon any claim arising out of a transaction that was the subject matter of a previous 

action. Where a claim could have been litigated in the previous suit, claim preclusion 

also bars subsequent actions on that matter.” Id., citing Grava, supra, at 382 and Fort 

Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 

(1998). 

{¶55} “For claim preclusion to apply, the parties to the subsequent suit must 

either be the same or in privity with the parties to the original suit.” Id. at ¶9 (citation 

omitted). “[P]rivity is a somewhat amorphous concept in the context of claim 

preclusion.” Id. (citations omitted). “A ‘mutuality of interest, including an identity of 

desired result,’ might also support a finding of privity. Mutuality, however, exists only if 

‘the person taking advantage of the judgment would have been bound by it had the 

result been the opposite.’” Id. (internal citations omitted). 

{¶56} Because res judicata is an affirmative defense, the party seeking to use 

the doctrine has the burden of persuasion as it applies to the case. Miller, supra, at 

¶15. To meet this burden on summary judgment, the moving party must “clearly 
 23 

establish the basis of the prior action” and “demonstrate that the instant action arose out 

of the transaction or occurrence that was the subject of the former action.” Id. 

{¶57} Here, the Osborne Defendants provided the above-referenced evidence 

relating to the previous case, Case No. 19CV000779, which was the first action brought 

by Mr. Jochum in the Lake County Court of Common Pleas. These time-stamped 

documents were sworn to by affidavit of defense counsel. Mr. Jochum does not contest 

their authenticity or accuracy. Nor did he respond to the motions in any attempt to 

demonstrate a genuine issue of material fact, such that the doctrine of res judicata 

should not bar his present action as a matter of law. 

{¶58} His previous complaint requested declaratory relief and the right to 

intervene in the litigation that resulted in the Consent Order regarding Mentor Marsh 

(Case No. 13CV001868). The trial court granted the Civil Rule 12(B)(6) motion to 

dismiss in that case, which acted as a dismissal with prejudice. Mr. Jochum did not 

appeal the trial court’s dismissal order. 

{¶59} Thus, the final judgment upon its merits rendered by the trial court on 

August 28, 2019, is a bar to the case sub judice because it is based upon the same 

facts and the claims either were or could have been previously litigated in the previous 

action. 

{¶60} Mr. Jochum contends claim preclusion should not apply because he “was 

not a party to the eight-year case that settled in January 2019” and “was not trying to 

relitigate the State of Ohio environmental claims against the Defendants.” This 

argument misunderstands which adjudication is subject to the claim preclusive effect of 

res judicata. His current action is not barred because of the previous litigation in Case 
 24 

Nos. 13CV001868 and 16CV001144, which resulted in the Consent Order; it is barred 

because of his previous complaint filed in Case No. 19CV000779.

{¶61} Mr. Jochum further contends that claim preclusion should not apply 

because his previous complaint was decided on a motion to dismiss and, therefore, he 

did not have an opportunity to litigate in the previous case. This argument lacks merit. 

A dismissal under Civil Rule 12(B)(6) for failure to state a claim is a dismissal with 

prejudice and, therefore, an adjudication upon the merits. Grippi v. Cantagallo, 11th 

Dist. Ashtabula No. 2011-A-0054, 2012-Ohio-5589, ¶13-14 (citations omitted). As such, 

it is “vulnerable to a defense of res judicata.” Id. at ¶7, citing Tower City Prop. v. 

Cuyahoga Cty. Bd. of Rev., 49 Ohio St.3d 67, 69 (1990), citing Civ.R. 41(B). 

{¶62} We conclude that the trial court appropriately applied the doctrine of res 

judicata, neither rigidly nor errantly, as the defendants met their burden on summary 

judgment and Mr. Jochum failed to meet his. The trial court did not err in concluding the 

Osborne Defendants and Mrs. Osborne were entitled to summary judgment, as a matter 

of law, on Mr. Jochum’s complaint. See Civ.R. 56(C); Dresher v. Burt, 75 Ohio St.3d 

280, 293 (1996). 

{¶63} Mr. Jochum’s second assignment of error is without merit. 

{¶64} The judgment of the Lake County Court of Common Pleas is affirmed. 

MATT LYNCH, J., 

MARY JANE TRAPP, J., 

concur.